2014 P Cr. L J 1526

 

[Peshawar]

 

Before Mrs. Irshad Qaiser, J

 

BAZIR---Petitioner

 

Versus

 

The STATE and another---Respondents

 

Criminal M/BCA No.460-A of 2013, decided on 22nd November, 2013.

 

(a) Criminal Procedure Code (V of 1898)---

 

----S. 497(5)---Bail, cancellation of---Principle---Bail once granted by competent Court of law should not be cancelled in ordinary course and there must be strong and exceptional reason for its cancellation---Bail can only be cancelled if bail granting order appears to be perverse and gross illegality has been done.

 

(b) Criminal Procedure Code (V of 1898)---

 

----S. 497(5)---Penal Code (XLV of 1860), S. 302---Qatl-e-amd---Bail, cancellation of---Abscondance of accused---Accused remained absconder till his co-accused was acquitted by Trial Court---Plea raised by complainant was that long standing abscondance for more than two years disentitled him from concession of bail---Validity---Prolong abscondance for more than two years disentitled accused to concession of bail---If accused sought bail on the ground of acquittal of co-accused then he must be treated alike with acquitted accused---Soon after arrest of acquitted accused, he remained behind the bars till the decision of his acquittal passed by Trial Court---Order of Trial Court releasing co-accused on bail amounted to encourage fugitives of law by giving them benefit for showing disrespect to law---High Court set aside bail granting order passed by Trial Court as the same was not correct and legal and had resulted in miscarriage of justice---Application was allowed in circumstances.

 

Jan Muhammad v. The State and another 1978 SCMR 287; Akhtar Ali v. Azhar Ali Shah and others 1985 SCMR 1166; Atlas Khan v. Mazamullah Khan and another 1989 PCr.LJ 2044; Ibrahim v. Hayat Gul and others 1985 SCMR 382; PLD 1979 Pesh. 16; Awal Gul v. Zawar and others PLD 1985 SC 402; Shah Muhammad Khan and another v. The State 1991 PCr.LJ Pesh. 65; Muhammad Anees and another v. Abdul Qayyum alias Kalla Khan 2013 YLR 720; Muhammad Aslam Bajwa v. The State and others 2013 MLD 280; Khadim Hussain v. State 2013 PCr.LJ 938; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Raja Zahoor Ahmed v. The State and 2 others 2005 PCr.LJ 1713 and Muhammad Iqbal v. The State and another 2003 MLD 669 ref.

 

Yasir Zahoor Abbasi and Ch. Arif for Appellant.

 

Raja Zubair, D.A.-G. for the State.

 

Amanullah Khan for Respondent.

 

Date of hearing: 22nd November, 2013.

 

JUDGMENT

 

MRS. IRSHAD QAISER, J.---The instant bail cancellation petition under section 497(5), Cr.P.C. is filed by complainant/father of deceased Mst Asia Bibi against the order of learned Sessions Judge Batagram dated 17-7-2013 whereby respondent Momin Khan son of Kachkol was allowed bail in case F.I.R. No.177 dated 18-5-2011 under section 302/34, P.P.C. Police Station Batagram.

 

2. The facts in brief as recorded in the shape of murasila are that the complainant Bazir reported the matter to police to the effect that acquitted accused Sikandar had demanded the hand of his daughter but he had refused as he was already married and hence he had threatened them of dire consequence and that he will commit the murder of deceased. That on 17-7-2013 when deceased along with his son Gulzar was going to his brother's house where Sikandar and his brother Momin were waiting with fire arms and on seeing them they started firing as a result Mst Asia sustained injuries on the right shoulder and right armpit and succumbed to injuries on the spot. Gulzar saved himself and fled away from the spot. On hearing the fire shot the complainant and one Abdur Rahim reached the spot and found Mst. Asia Bibi dead while his son took shelter in the slope of the mountain. That he along with Abdur Rahim had seen both the accused while decamping from the spot. During the course of investigation acquitted accused Sikandar was arrested while present petitioner Momin became absconder. Thus after the completion of investigation complete challan was submitted. During the trial proceedings under section 512, Cr.P.C. were initiated against accused/petitioner and after the conclusion of trial accused Sikandar was acquitted vide order dated 3-5-2011 while present petitioner was declared P.O. Later on appeal against acquittal was filed against Sikandar which was also dismissed.

 

3. Respondent Momin after the arrested in the above case was sent to judicial look up and after completion of investigation supplementary challan was submitted against him for his trial in the competent Court of law. During his arrest respondent applied for his release on bail before Sessions Judge and he was pleased to release him on bail vide impugned order dated 17-7-2013 on the ground of acquittal of co-accused Sikandar Khan. Petitioner/complainant Bazir has challenged the release of respondent No.2 Momin through the instant cancellation petition.

 

4. Learned counsel for the petitioner argued that the learned Sessions Judge Battagram has granted bail to the accused on the ground that the role attributed to the respondent is similar to that of the acquitted accused, which by itself is no ground for releasing the respondent No.2 on bail. He further argued that fugitive from law loses some of his normal rights available to him under the law. That he was well versed with his involvement and the trial of his brother but he decamped from the spot only to see the result of the trial of his brother and when he was acquitted by trial Court and appeal against his acquittal was dismissed then he surrendered himself to the legal agency. Therefore, he should not have been granted bail as consistently held by the apex Court. He further argued that long abscondence for more than two years disentitled him from the concession of bail notwithstanding merits of the case. He placed reliance on the judgment Jan Muhammad v. The State and another (1978 SCMR 287), Akhtar Ali v. Azhar Ali Shah and others (1985 SCMR 1166), Atlas Khan v. Mazamullah Khan and another (1989 PCr.LJ 2044), Ibrahim v. Hayat Gul and others (1985 SCMR 382), PLD 1979 Peshawar 16 and Awal Gul v. Zawar Khan and others (PLD 1985 SC 402).

 

5. The arguments were rebutted by learned counsel for the respondent and defended the impugned order on the ground that consideration for cancellation of bail are quite distinct from consideration for grant of bail. That once bail is granted by competent Court of law then strong and exceptional grounds are required for cancellation of the same. He next contended that there is no allegation that respondent has misused the concession of bail granted to him. That since they are very poor, he and his brother were the only bread earners of their family, therefore, during the custody of his brother he remained absconder only to earn the livelihood of his family. That neither some fresh facts nor material has been collected by the police during investigation, which could tend to establish or point out guilt of accused/respondent. His contention was that provision of section 497, Cr.P.C. being not at all punitive in nature therefore, strong and exceptional grounds are required for cancellation of bail which are lacking in the present case. He argued that abscondance by itself is no ground for cancellation of bail. That trial has already been commenced and it is settled principle of law that when trial is commenced or going to be commenced the bail cancellation shall be avoided. He placed reliance on Shah Muhammad Khan and another v. The State (1991 PCr.LJ Peshawar 65), Muhammad Anees and another v. Abdul Qayyum alias Kalla Khan (2013 YLR AJK 720), Muhammad Aslam Bajwa v. The State and others (2013 MLD Lahore 280), Khadim Hussain v. State (2013 PCr.LJ Lahore 938), The State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322) and Raja Zahoor Ahmed v. The State and 2 others (2005 PCr.LJ 1713).

 

6. I have carefully perused the record in the light of arguments advanced by learned counsel for the parties.

 

7. No doubt bail once granted by the competent Court of law should not be cancelled in ordinary course and there must be strong and exceptional reason for its cancellation showed and it can only be cancelled if bail granting order appeared to be perverse, and a gross illegality has been done. It is the consistent view of superior Courts that if the bail granting order is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice then interference of the superior Courts is always required in the instant case, without going into the merit of the case, admitted position is that respondent No.2 remained fugitive from law and waited for the result of his co-accused who faced trial and it is after the acquittal of his co-accused, either he surrendered or was arrested by the police. The learned Sessions Judge granted him bail on the simple ground that the role attributed to respondent No.2 is similar to that of Sikandar acquitted co-accused, both are charged for the murder of deceased Asia Bibi. Such conduct of the absconding accused has never been encouraged by superior Courts. Reliance is made to 2003 MLD Peshawar 669 in case Muhammad Iqbal v. The State and another wherein it is held; "Accused had remained absconder for about three years and during this period trial of co-accused was completed and he was acquitted--. Noticeable abscondence of accused had disentitled him to the concession of bail which could not be granted to him at such stage as bonus for his abscondence. Bail was declined to the accused in circumstances." In the case of Atlas Khan v. Mazullah Khan and another reported in 1989 PCr.LJ 2044 it has been held "If absconders were granted bail merely due to the acquittal of the co-accused then most of the accused would remain fugitive till disposal of case and would appear only after acquittal of co-accused which would tantamount to a premium for abscondence rather than a category of evidence against him". Similarly in the case reported in 1978 SCMR 287 the august Court refused to set aside bail cancellation order passed by this Court where the learned Additional Sessions Judge, Peshawar has granted bail to the accused on the ground that his co-accused has been acquitted.

 

8. Record shows that in the present case supplementary challan has been submitted in the trial Court and his trial is to be commenced in near future, therefore, I do not want to discuss the merit of the case. Suffice it to say that in the light of the judgments referred to above and keeping prolong abscondence for more than two years, the accused/respondent is not entitled to the concession of bail. Moreover, if he seeks the bail on the ground of acquittal of co-accused then he must be treated alike with the acquitted accused. Record shows that soon after the arrest of acquitted accused he remained behind the bars till the decision of his acquittal passed by trial Court vide judgment and order dated 3-5-2012. Thus in such view of the matter the order of the lower Court, releasing respondent No.2 on bail is against the established principle of law which amounts to encourage fugitive of law by giving them benefit for showing disrespect to law. Thus the bail granting order dated 17-7-2013 passed by Sessions Judge Battagram is not correct and legal and has resulted in miscarriage of justice. Therefore, bail cancellation application is accepted and the bail order is set aside. Respondent present in Court be taken into custody and sent to Jail to face his trial.

 

9. The record be sent back to the trial Court to conclude the trial of accused within period of three months positively after the receipt of case file.

 

MH/96/P Bail cancelled.